VIJAY SARASWAT Vs. RICHA OJHA SARASWAT
LAWS(CHH)-2018-5-50
HIGH COURT OF CHHATTISGARH
Decided on
May 15,2018
VIJAY SARASWAT
Appellant
VERSUS
Richa Ojha Saraswat
Respondents
Referred Judgements :-
RAMNARAYAN MOR VS. STATE OF MAHARASHTRA [REFERRED TO]PATEL CHUNIBHAI DAJIBHA VS. NARAYANRAO KHANDERAO JAMBEKAR ANOTHER [REFERRED TO]
MARTIN BUM LIMITED VS. CORPORATION OF CALCUTTA [REFERRED TO]
PEDDA NARAYANA VS. STATE OF ANDHRA PRADESH [REFERRED TO]
SAT PAUL VS. DELHI ADMINISTRATION [REFERRED TO]
STATE DELHI ADMINISTRATION INDIAN FEDERATION OF WOMEN LAWYERS VS. LAXMAN KUMAR:SHAKUNTALA [REFERRED TO]
MAHALAKSHMI OIL MILLS MAHALAKSHMI TRADERS RAMALINGESWARA OIL MILL JAVA KRISHNA OIL MILLS VS. STATE OF ANDHRA PRADESH:COMMERCIAL TAX OFFICER:COMMERCIAL TAX OFFICER:STATE OF ANDHRA PRADESH [REFERRED TO]
PUNJAB LAND DEVELOPMENT AND RECLAMATION CORPORATION LIMITED CHANDIGARH DIVISIONAL CONTROLLER MAHARASHTRA STATE ROAD TRANSPORT CORPORATION AMRAVATI REGIONAL MANAGER WEST ZONE NOW KNOWN AS KANPUR REGION BANK OF BARODA REGIONAL OFFICE LUCKNOW VS. PRESIDING OFFICER LABOUR COURT CHANDIGARH:CHANDRASHEKHAR MARIBHAU DESHMUKH :SECRETARY U P BANK EMPLOYEES UNION C O BANK OF BARODA LATOUCHE ROAD KANPUR :LABOUR COURT RANCHI:NAMDEO:SECRETA [REFERRED TO]
M V ELISABETH M V ELISABETH VS. HARWAN INVESTMENT AND TRADING PRIVATE LIMITED HANOEKAR HOUSE SWATONTAPETH VASCO DE GAMA GOA: HARWAN INVESTMENT AND TRADING CO [REFERRED TO]
P KASILINGAM VS. P S G COLLEGE OF TECHNOLOGY [REFERRED TO]
OMKAR NAMDEO JADHAO VS. SECOND ADDITIONAL SESSIONS JUDGE BULDANA [REFERRED TO]
STATE OF BIHAR VS. BIHAR DISTILLERY LIMITED [REFERRED TO]
SULTANA BEGUM VS. PREM CHAND JAIN [REFERRED TO]
INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA VS. PRICE WATERHOUSE [REFERRED TO]
SOUTH CENTRAL RAILWAY EMPLOYEES COOPERATIVE CREDIT SOCIETY EMPLOYEES UNION SECUNDERABAD VS. REGISTRAR OF COOPERATIVE SOCIETIES [REFERRED TO]
RANJIT SINGH VS. STATE OF PUNJAB [REFERRED TO]
SWIL LIMITED VS. STATE OF DELHI [REFERRED TO]
FEROZE N DOTIVALA VS. P M WADHWANI [REFERRED TO]
AMEER TRADING CORPORATION LIMITED VS. SHAPOORJI DATA PROCESSING LIMITED [REFERRED TO]
RAM SWAROOP VS. STATE OF RAJASTHAN [REFERRED TO]
LOK RAM VS. NIHAL SINGH [REFERRED TO]
MOHD SHAFI VS. MOHD RAFIQ [REFERRED TO]
HAMDARD WAKF LABORATORIES VS. DEPUTY LABOUR COMMR [REFERRED TO]
RAJENDRA SINGH VS. STATE OF U P [REFERRED TO]
GURIYA ALIAS TABASSUM TAUQUIR VS. STATE OF BIHAR [REFERRED TO]
UTTAR HARYANA BIJLI VITRAN NIGAM LTD VS. SURJI DEVI [REFERRED TO]
PONDS INDIA LTD VS. COMMISSIONER OF TRADE TAX [REFERRED TO]
HARBHAJAN SINGH VS. STATE OF PUNJAB [REFERRED TO]
KALYAN KUMAR GOGOI VS. ASHUTOSH AGNIHOTRI [REFERRED TO]
SUNIL MEHTA VS. STATE OF GUJARAT [REFERRED TO]
JUDGEMENT
Arvind Singh Chandel, J. -
(1.)By the instant revision, the Applicants have challenged the legality, validity and propriety of the order dated 31.3.2017 passed by the 4th Additional Sessions Judge, Bilaspur in Criminal Revision No.96 of 2014 by which the Revisional Court/Additional Sessions Judge has allowed Criminal Revision No.96 of 2014 preferred by the present Respondent, set aside the order dated 20.3.2014 passed by the Judicial Magistrate First Class, Bilaspur in Criminal Case No.111 of 2013 and directed the Trial Court/Judicial Magistrate First Class to add the present Applicants as accused and to issue them summons.
(2.)Facts of the case, in brief, are that a private complaint was filed by the present Respondent before the Chief Judicial Magistrate, Bilaspur against her husband Gourav Saraswat and the present Applicants for offence punishable under Sections 498A/34, 506B, 323, 34 of the Indian Penal Code. She further moved an application under Section 156(3) of the Code of Criminal Procedure before the Chief Judicial Magistrate, Bilaspur. The said application was filed by her with the allegation inter alia that she got married with Gourav Saraswat at Rajasthan on 8.12010. Present Applicant No.1, Vijay Saraswat is father-in-law of the Respondent, Applicant No.2, Smt. Manju Saraswat is mother-inlaw of the Respondent and Applicant No.3, Pawan Sharma is maternal uncle of husband of the Respondent. It was alleged in the said application that they used to harass and illtreat the Respondent for demand of dowry. Police investigated the matter and recored statements of the Respondent and other witnesses and on completion of the investigation, filed a charge-sheet only against the husband of the Respondent under Section 498A of the Indian Penal Code on 5.2013. On 9.7.2013, charge was framed against the husband of the Respondent under Section 498A of the Indian Penal Code and the case was fixed for evidence of the prosecution. At that stage, the Respondent/wife moved an application for adding the present Applicants as accused which was rejected by the Judicial Magistrate First Class, Bilaspur vide the order dated 20.3.2014 holding that on the basis of the investigation carried out by the police and the material collected during the course of investigation, the allegations levelled against the present Applicants are not made out at this stage. Being aggrieved by the order dated 20.3.2014, the Respondent/wife filed a revision, being Criminal Revision No.96 of 2014 before the Court of Session at Bilaspur. The 4th Additional Sessions Judge, Bilaspur, vide the impugned order dated 31.3.2017, has allowed the revision and directed the Judicial Magistrate First Class to add the present Applicants as accused and take cognizance against them. Hence, this revision.
(3.)Learned Counsel appearing for the Applicants submitted that when the charge-sheet was filed before the Magistrate, he had applied his mind and accepted the charge-sheet and thereafter framed the charge only against the husband of the Respondent/wife. He further submitted that once cognizance has been taken and charge has been framed, only the Trial Court has jurisdiction to exercise the powers under Section 319 of the Code of Criminal Procedure. It was further submitted that the Revisional Court has exceeded its jurisdiction and exercised the power under Section 319 of the Code of Criminal Procedure which are the powers to be exercised only by the Court having original jurisdiction. The Additional Sessions Judge has failed to appreciate that the Magistrate has not rejected the application on merits, meaning thereby the Magistrate has not refused to take cognizance and not refused to order on an application under Section 319 of the Code of Criminal Procedure.
The Magistrate has turned down the prayer at that stage because that was not the stage of exercising the power under Section 319 of the Code of Criminal Procedure. If the Additional Sessions Judge is of the opinion that the order passed by the Magistrate is not sustainable in the eyes of law, he has a power to remand the matter to the Magistrate for exercising original jurisdiction under Section 319 of the Code of Criminal Procedure or under Section 190 of the Code of Criminal Procedure. The Additional Sessions Judge has failed to appreciate the law laid down by the Supreme Court in (Dharam Pal v. State of Haryana, (2014) 3 SCC 306) in its correct perspective which has resulted into the erroneous order. In fact, the Additional Sessions Judge misinterpreted the law laid down by the Supreme Court in its said judgment. The Additional Sessions Judge has failed to appreciate that the facts of Dharam Pal case are entirely different from the case in hand. Reliance has further been placed on (Hardeep Singh v. State of Punjab, (2014) 3 SCC 92).
(2.)Facts of the case, in brief, are that a private complaint was filed by the present Respondent before the Chief Judicial Magistrate, Bilaspur against her husband Gourav Saraswat and the present Applicants for offence punishable under Sections 498A/34, 506B, 323, 34 of the Indian Penal Code. She further moved an application under Section 156(3) of the Code of Criminal Procedure before the Chief Judicial Magistrate, Bilaspur. The said application was filed by her with the allegation inter alia that she got married with Gourav Saraswat at Rajasthan on 8.12010. Present Applicant No.1, Vijay Saraswat is father-in-law of the Respondent, Applicant No.2, Smt. Manju Saraswat is mother-inlaw of the Respondent and Applicant No.3, Pawan Sharma is maternal uncle of husband of the Respondent. It was alleged in the said application that they used to harass and illtreat the Respondent for demand of dowry. Police investigated the matter and recored statements of the Respondent and other witnesses and on completion of the investigation, filed a charge-sheet only against the husband of the Respondent under Section 498A of the Indian Penal Code on 5.2013. On 9.7.2013, charge was framed against the husband of the Respondent under Section 498A of the Indian Penal Code and the case was fixed for evidence of the prosecution. At that stage, the Respondent/wife moved an application for adding the present Applicants as accused which was rejected by the Judicial Magistrate First Class, Bilaspur vide the order dated 20.3.2014 holding that on the basis of the investigation carried out by the police and the material collected during the course of investigation, the allegations levelled against the present Applicants are not made out at this stage. Being aggrieved by the order dated 20.3.2014, the Respondent/wife filed a revision, being Criminal Revision No.96 of 2014 before the Court of Session at Bilaspur. The 4th Additional Sessions Judge, Bilaspur, vide the impugned order dated 31.3.2017, has allowed the revision and directed the Judicial Magistrate First Class to add the present Applicants as accused and take cognizance against them. Hence, this revision.
(3.)Learned Counsel appearing for the Applicants submitted that when the charge-sheet was filed before the Magistrate, he had applied his mind and accepted the charge-sheet and thereafter framed the charge only against the husband of the Respondent/wife. He further submitted that once cognizance has been taken and charge has been framed, only the Trial Court has jurisdiction to exercise the powers under Section 319 of the Code of Criminal Procedure. It was further submitted that the Revisional Court has exceeded its jurisdiction and exercised the power under Section 319 of the Code of Criminal Procedure which are the powers to be exercised only by the Court having original jurisdiction. The Additional Sessions Judge has failed to appreciate that the Magistrate has not rejected the application on merits, meaning thereby the Magistrate has not refused to take cognizance and not refused to order on an application under Section 319 of the Code of Criminal Procedure.
The Magistrate has turned down the prayer at that stage because that was not the stage of exercising the power under Section 319 of the Code of Criminal Procedure. If the Additional Sessions Judge is of the opinion that the order passed by the Magistrate is not sustainable in the eyes of law, he has a power to remand the matter to the Magistrate for exercising original jurisdiction under Section 319 of the Code of Criminal Procedure or under Section 190 of the Code of Criminal Procedure. The Additional Sessions Judge has failed to appreciate the law laid down by the Supreme Court in (Dharam Pal v. State of Haryana, (2014) 3 SCC 306) in its correct perspective which has resulted into the erroneous order. In fact, the Additional Sessions Judge misinterpreted the law laid down by the Supreme Court in its said judgment. The Additional Sessions Judge has failed to appreciate that the facts of Dharam Pal case are entirely different from the case in hand. Reliance has further been placed on (Hardeep Singh v. State of Punjab, (2014) 3 SCC 92).
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